In my previous article describing First Amendment basics, I mentioned that the law of free speech evolves over time, as new issues inevitably arise. The Founders seem to have expected this. That’s probably one of the reasons they drafted the First Amendment in such general terms.
However, few new issues have presented a bigger challenge to traditional notions of what free speech means than the rise of the internet and Big Tech. Internet and social media platforms such as Twitter, Facebook, Google and Amazon have become the primary means by which much of the public conversation in this country — about politics, social issues, morality and almost everything else — is conducted.
As a result, the recent actions of the Big Tech companies to block certain speech and speakers on their platforms raise important free speech concerns because what they are doing clearly amounts to censorship.
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But, as noted in my earlier article, the First Amendment only limits the ability of government to restrict expression and, furthermore, corporations are among those protected by the amendment’s free speech guarantee. This means that under current law, the Big Tech companies have a First Amendment right to disseminate only what they want to, no matter how arbitrary or impactful their decisions may be.
Nonetheless, it’s fair to ask whether this is a good thing. The First Amendment is not simply a legal doctrine. It also expresses one of the most cherished values of our democracy, repeatedly acknowledged by the courts over many decades as representing “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” It “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.”
“Those who won our independence believed” that the “path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law.”
In the Founders’ time, and for most of American history, only the government had the power to censor speech in a broad enough way to disrupt the “debate on public issues,” to interfere with the “opportunity to discuss freely supposed grievances and proposed remedies.” But arguably Big Tech companies now have more power than the government does in this context. And, consequently, when they exercise that power, they are effectively able to remove certain information and points of view from public awareness, just as if access to them was prohibited by the government.
If as the Founders believed it’s bad for democracy when the government restricts the public exchange of ideas, proposals, and arguments, maybe it’s equally bad when Big Tech does so. Can we be confident that if powerful private corporations are controlling large parts of the public conversation, the effects will be any different than if the government were acting as censor?
This question has prompted some observers to think about a new approach to Big Tech censorship. They say that if private entities with so much power over public communications had existed in 1791, it’s plausible that the Founders — given the importance they assigned to free speech — would also have restricted the ability of those entities to interfere with expression, just as they did with the government.
The Big Tech communications platforms are, in historical terms, unprecedented.
Nothing of comparable impact on the flow of public information has appeared before, except maybe the printing press in the 1400s. When that technology began to transform society, entirely new laws had to be developed in response. Possibly a similar process should now occur with respect to Big Tech.
According to some critics, one option would be to impose on Big Tech platforms the same stringent rules that currently apply to government officials before they are allowed to restrict expression. This would obviously involve a significant departure from portions of traditional First Amendment theory. But the critics argue that such an approach is warranted, because the Big Tech platforms represent a significant departure from traditional methods of communication.
Anfinson is a Minneapolis-based First Amendment attorney.